Citation Nr: 0428581
Decision Date: 10/18/04 Archive Date: 10/28/04
DOCKET NO. 04-03 582 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death, to include on the basis of exposure to
ionizing radiation and on the basis of exposure to Agent
Orange herbicides during the Vietnam War era.
REPRESENTATION
Appellant represented by: Oklahoma Department of
Veterans Affairs
WITNESSES AT HEARING ON APPEAL
Appellant and her daughter
ATTORNEY FOR THE BOARD
Michael A. Pappas, Counsel
INTRODUCTION
The veteran served on active duty for over 20 years and 7
months until his separation from active service in January
1975. He died on December [redacted], 1995. The appellant is the
surviving spouse of the deceased veteran.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a June 2003 decision of the Department
of Veterans Affairs (VA), Muskogee, Oklahoma, Regional Office
(RO). The RO denied the appellant's claim for service
connection for the cause of the veteran's death.
In May 2004 the appellant and her daughter provided oral
testimony before the undersigned Veterans Law Judge sitting
at the RO, a transcript of which has been associated with the
claims file.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, D.C. VA will notify you if
further action is required on your part.
REMAND
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims (CAVC)
for additional development or other appropriate action must
be handled in an expeditious manner. See The Veterans
Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117
Stat. 2651 (2003) (codified at 38 U.S.C. §§ 5109B, 7112).
The CAVC has held that section 5103(a), as amended by the
Veterans Claims Assistance Act of 2000 (VCAA) and § 3.159(b),
as recently amended, require VA to inform a claimant of which
evidence VA will provide and which evidence claimant is to
provide, and remanding where VA failed to do so. See
Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 202);
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2003).
The RO issued a VCAA notice letter to the appellant in May
2003.
The appellant seeks service connection for the cause of the
veteran's death. She bases her claim upon three distinct
theories. First, she contends that her husband was exposed
to the toxic herbicide, Agent Orange, during the Vietnam War
era, and that this exposure led to the development of his
fatal lung cancer. Second, she alleges that the veteran's
work as a painter during service exposed him to carcinogenic
paint fumes that ultimately resulted in the development of
lung cancer. Finally, the appellant contends that the
veteran's death from lung cancer was the result of exposure
to ionizing radiation during service.
With respect to the appellant's theory regarding Agent Orange
exposure, there is no evidence in the claims file, including
the veteran's available service personnel file, to show that
he served in the Republic of Vietnam during the Vietnam War
era.
Thus, such exposure cannot be presumed. Consequently, any
theory relating the veteran's fatal lung cancer to Agent
Orange exposure would require positive evidence of the
veteran's in-service exposure to such toxic herbicides in
order to be tenable. This information should be communicated
to the appellant in order to assist her in the development of
her claim. 38 U.S.C.A. § 5103.
With respect to the appellant's theory that the veteran's in-
service occupation as a painter resulted in his death, there
was received in May 2004 a letter from the veteran's
physician expressing the opinion that exposure to paint fumes
in service could have been the cause of the development of
the veteran's fatal lung cancer.
Although this opinion employs words amounting to speculation
(i.e. "could have been the cause"), it does at least bring
into focus the possibility of in-service causation. The
veteran's service personnel file indicates that his military
occupational specialty (MOS) was that of a painter.
Under U.S.C.A. § 5103A(d)(1) (West 2002), obtaining a medical
opinion is necessary if there is competent medical evidence
that the veteran's death may be associated with his active
duty, but the record does not contain sufficient medical
evidence for the Secretary to make a decision on the claim.
The necessity for an appropriate medical review is shown for
the proper assessment of the appellant's claim based upon her
occupational hazard theory. 38 U.S.C.A. § 5103A (West 2002).
With respect to the appellant's contention that the veteran's
death was the result of exposure to ionizing radiation during
service, she has specifically alleged that while the veteran
was stationed at Nellis Air Force Base in Nevada in 1957, he
was involved in nuclear testing during Operation PLUMBBOB.
Lung cancer is among the diseases for which service
connection may be granted on a presumptive basis if it is
shown that the veteran participated in a "radiation-risk
activity." 38 U.S.C.A. § 1112(c) (West 2002); 38 C.F.R.
§ 3.309(d) (2004). Radiation-risk activity includes
Operation PLUMBBOB, which was conducted in Nevada from May
28, 1957 through October 22, 1957.
Service records do indicate that the veteran was stationed at
Nellis Air Force Base in Nevada during this time period.
Based upon the foregoing, the Board finds that the
development of the issue of service connection for the cause
of the veteran's death, claimed as secondary to exposure to
radiation, is required.
Section 3.311 essentially states that a dose assessment will
be made in all claims in which it is established that a
radiogenic disease first became manifest after service, and
it is contended that the disease resulted from radiation
exposure. 38 C.F.R. § 3.311(a) (2004); see also Ramey v.
Gober, 120 F.3d 1239, 1244 (Fed. Cir. 1997).
Under the present circumstances, the record shows that lung
cancer is a "radiogenic disease," and it appears that the
disease became manifest within the applicable time period.
See 38 C.F.R. § 3.311(b)(2)(ii), (b)(5).
As stated above, the appellant contends that the veteran's
fatal lung cancer resulted from radiation exposure.
Therefore, as lung cancer is a "radiogenic disease," and the
appellant has alleged that the veteran's fatal lung cancer
resulted from his exposure to radiation, a dose assessment is
required. 38 C.F.R. § 3.311(a).
Dose data will be requested from the Department of Defense in
claims based upon participation in atmospheric nuclear
testing, and claims based upon participation in the American
occupation of Hiroshima or Nagasaki, Japan, prior to July 1,
1946. 38 C.F.R. § 3.311(a)(2) (2004).
In all other claims involving radiation exposure, a request
will be made for any available records concerning the
veteran's exposure to radiation. These records normally
include but may not be limited to the veteran's Record of
Occupational Exposure to Ionizing Radiation (DD Form 1141),
if maintained, service medical records, and other records
which may contain information pertaining to the veteran's
radiation dose in service.
All such records will be forwarded to the Under Secretary for
Health, who will be responsible for preparation of a dose
estimate, to the extent feasible, based on available
methodologies. 38 C.F.R. § 3.311(a)(2)(iii).
It does not appear that the RO referred the case to the Under
Secretary for Health, as mandated in 38 C.F.R. §
3.311(a)(2)(iii). On remand, the VBA AMC should, after
completing all necessary development (as will be discussed in
detail below), refer the case to the Under Secretary for
Health, even if such development yields no evidence of
radiation exposure. See 38 C.F.R. § 3.311(a)(1).
Initially, the VBA AMC should request a dose assessment from
the Department of Defense for the allegation of exposure to
radiation from participation in Operation PLUMBBOB. In that
regard, efforts must be made to locate evidence of radiation
exposure by sending requests for pertinent records to the
National Personnel Records Center (NPRC) and the Dosimetry
Branch of the Department of the Air Force (USAF Center for
Radiation Dosimetry).
If it is found, upon completion of the above development
(including a dose assessment from the Under Secretary for
Health), that the veteran was exposed to radiation during
service, the claim must be referred to the Under Secretary
for Benefits for further consideration in accordance with 38
C.F.R. § 3.311(c). 38 C.F.R. § 3.311(b).
If it is determined that the veteran was not exposed to
radiation, further development (i.e., referral to the Under
Secretary for Benefits) is not required under 38 C.F.R. §
3.311. See Wandel v. West, 11 Vet. App. 200, 205 (1998).
In addition, the VBA AMC should also consider on remand
whether any additional notification or development action is
required under the Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, § 3(a), 114 Stat. 2096 (2000).
The Board observes that additional due process requirements
may be applicable as a result of the enactment of the VCAA
and its implementing regulations. See 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A and 5107 (West 2002) and 66 Fed. Reg.
45,620 (Aug. 29, 2001) (38 C.F.R. §§ 3.102, 3.156(a), 3.159,
and 3.326(a)).
Accordingly, the issue of service connection for the cause of
the veteran's death, including as secondary to exposure to
radiation is remanded for the following:
1. The appellant has the right to submit
additional evidence and argument on the
matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369
(1999).
2. The VBA AMC must review the claims
file and ensure that all VCAA notice
obligations have been satisfied in
accordance with 38 U.S.C.A. §§ 5102,
5103, and 5103A (West 2002), Veterans
Benefits Act of 2003, Pub. L. 108-183
,§ 701, 117 Stat. 2651, ___ (Dec. 16,
2003) (codified at 38 U.S.C.A. § 5103),
and any other applicable legal precedent.
Such notice should specifically apprise
the appellant of the evidence and
information necessary to substantiate her
claim and inform her whether she or VA
bears the burden of producing or
obtaining that evidence or information,
and of the appropriate time limitation
within which to submit any evidence or
information. 38 U.S.C.A. § 5103(a) and
(b) (West 2002); Quartuccio v. Principi,
16 Vet. App. 183 (2002).
3. The VBA AMC should inform the
appellant that any theory relating the
veteran's fatal lung cancer to Agent
Orange exposure would require positive
evidence of the veteran having been
stationed in the Republic of Vietnam
during the Vietnam War era, or positive
evidence of in-service exposure to toxic
herbicides. The appellant should also be
asked to provide any additional evidence
she may possess regarding the veteran's
alleged exposure to radiation in service,
or his exposure to toxic paint fumes
during service.
4. The VBA AMC should send a request for
any information regarding the veteran's
reported exposure to ionizing radiation
[including but not limited to the
veteran's Record of Occupational Exposure
to Ionizing Radiation (DD Form 1141)]
while stationed at Nellis Air Force Base
in Nevada in 1957 during Operation
PLUMBBOB to the following locations, as
well as any other locations where it is
indicated that such information may be
found:
(a) Air Force Medical Operations Agency
AFMOA/SGOR Radiation Protection Division
110 Luke Avenue, Room 4005 Bolling Air
Force Base Washington, DC 20332-7050;
(b) USAF Center for Radiation Dosimetry E
Drive Brooks AFB, TX 78235
(C) National Personnel Records Center
(NPRC).
These requests should document where the
veteran was stationed during Operation
PLUMBBOB, as noted in the body of this
remand.
Attempts to obtain these records from
these locations shall continue until the
records are obtained unless it is
reasonably certain that such records do
not exist or that further efforts to
obtain those records would be futile.
The VBA AMC should take any appropriate
action suggested by the facilities
mentioned above in the event that it
cannot provide the information requested.
5. If the VBA AMC is unable to obtain
any of the relevant records sought, it
shall notify the appellant that it has
been unable to obtain such records by
identifying the specific records not
obtained, explaining the efforts used to
obtain those records, and describing any
further action to be taken with respect
to the claim.
6. The VBA AMC, as provided in 38 C.F.R.
§ 3.311(a)(2)(i), should request dose
information from the Department of
Defense. In this regard, the VBA AMC
should contact the Defense Threat
Reduction Agency (DTRA) to ascertain
whether it can provide a dose estimate
for the veteran with respect to his
alleged exposure to ionizing radiation as
a result of his participation in
Operation PLUMBBOB, while stationed at
Nellis Air Force Base, in Nevada in 1957.
The VBA AMC should provide DTRA with
additional information, including copies
of available service records (including
service personnel records), a copy of
this remand, and any other pertinent
information submitted by the appellant,
if any, regarding the above-mentioned
activities.
The VBA AMC should take any appropriate
action suggested by the DTRA in the event
that it cannot provide a dose estimate
for the veteran.
7. The VBA AMC must then forward such
records and any other evidence pertaining
to the veteran's reported exposure to
ionizing radiation to the Under Secretary
for Health, who will be responsible for
preparation of a dose estimate, to the
extent feasible, based on available
methodologies. 38 C.F.R. §
3.311(a)(2)(iii).
The VBA AMC should take any appropriate
action suggested by the Under Secretary
for Health in the event that it cannot
provide a dose estimate for the veteran.
8. If it is determined that the veteran
was exposed to ionizing radiation, as
claimed, the issue should be referred to
the Under Secretary for Benefits under 38
C.F.R. § 3.311(c) as provided by §
3.311(b)(1). See Wandel v. West, 11 Vet.
App. 200, 205 (1998) (holding that absent
competent evidence of radiation exposure,
VA is not required to forward a claim to
the Under Secretary for Benefits).
9. If it is determined that the veteran
was exposed to in-service radiation, but
that his lung cancer was not related to
such exposure, or that he was not exposed
to ionizing radiation, the VBA AMC should
schedule a VA medical opinion from an
appropriate medical specialist to
carefully review the records pertaining
to whether there is any causal
relationship between the veteran's MOS as
a painter and the development of fatal
lung cancer.
The claims file and a separate copy of
this remand should be made available to
and reviewed by the medical specialist
prior and pursuant to submission of a
medical opinion report.
The medical specialist must annotate the
medical opinion report that the claims
file was in fact made available for
review.
After carefully reviewing all medical
evidence of record, including the service
medical records and the copy of this
remand, and any relevant VA examinations,
the medical specialist is directed to
specifically answer the following
questions:
Is it likely, unlikely, or as likely as
not (the medical specialist is to choose
one) that the veteran's fatal lung cancer
was the result of his exposure to paint
fumes in service, or any other in-service
disease or injury?
In answering this question, the examiner
should specifically discuss the etiology
of the veteran's lung cancer disability,
including a discussion of whether the
fatal lung cancer was the result of in-
service exposure to paint fumes, versus
pre-service and post-service exposure to
the same or other substances, such as
tobacco smoke.
Any opinions expressed by the examiner
must be accompanied by a complete
rationale.
10. Thereafter, the VBA AMC should
review the claims file to ensure that all
of the foregoing requested development
has been completed. In particular, the
VBA AMC should review the requested
medical opinion report(s) to ensure that
they are responsive to and in complete
compliance with the directives of this
remand, and if they are not, the VBA AMC
should implement corrective procedures.
Stegall v. West, 11 Vet. App. 268 (1998).
11. After undertaking any development in
addition to that specified above, the VBA
AMC should readjudicate the issue of
entitlement to service connection for the
cause of the veteran's death, including
as secondary to exposure to ionizing
radiation, carcinogenic paint fumes,
and/or secondary to Agent Orange
herbicides.
If the benefit requested on appeal is not granted to the
appellant's satisfaction, the VBA AMC should issue a
supplemental statement of the case containing all applicable
criteria pertinent to the appellant's claim. A reasonable
period of time for a response should be afforded.
Thereafter, the case should be returned to the Board for
final appellate review, if otherwise in order. By this
remand, the Board intimates no opinion as to any final
outcome warranted. No action is required of the appellant
until she is notified by the VBA AMC.
_________________________________________________
RONALD R. BOSCH
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the CAVC. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).